| Awang bin Dollah v Shun Shing Construction & Engineering Co Ltd and other appeals [1997] 3 SLR 677; [1997] SGCA 33 |
| CA 115/1996, 126/1996, 145/1996 | |
| 13 Aug 1997 | |
| Court of Appeal | |
| Karthigesu JA, L P Thean JA, Yong Pung How CJ | |
| Subbiah Pillai (Pillai & Pillai), Karuppan Chettiar and Steven Lam Kuet Keng (Karuppan Chettiar & Partners) for the appellant in CA 115/96, Lim Chong Boon (Derrick Ravi & Partners) for the respondents in CA 115 and 145/96 and for the appellants in CA 126/96, NB Rao (B Rao & KS Rajah) for the respondents in CA 126/96 and for the appellants in CA 145/96 |
Judgment
[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.] Judgment reserved. LP Thean JA (delivering the judgment of the court): 1 In the court below, the plaintiff, Awang bin Dollah (‘the plaintiff’) claimed against Shun Shing Construction & Engineering Co Ltd (‘Shun Shing’) damages for personal injuries suffered by him as a result of an accident which occurred at a construction site in Tampines on 3 July 1994. Cosmic Insurance Corporation Ltd was the third party (‘the third party’), having been joined as such by Shun Shing claiming an indemnity under a policy of insurance. The trial judge dismissed with costs the plaintiff’s claim. He also dismissed Shun Shing’s claim against the third party but held that Shun Shing’s claim against the third party for an indemnity would have succeeded, if the plaintiff had succeeded in his claim against Shun Shing. He ordered the third party to pay Shun Shing’s costs in the third party proceedings. Against that part of the decision of the learned judge dismissing his claim, the plaintiff appeals, and his appeal is CA 115/96. Shun Shing also appeal, and theirs is CA 126/96, and is to the effect that should the plaintiff succeed in his appeal, the learned judge’s order dismissing their claim against the third party be reversed. They appeal also against the order as to the costs of the third party proceedings. Finally, there is the appeal by the third party, namely, CA 145/96, and that is essentially against that part of the learned judge’s decision which held that that the third party would have been liable to indemnify Shun Shing against the claim of the plaintiff under the insurance policy, had the plaintiff succeeded in his claim against Shun Shing. The facts 2 On 3 July 1994 at about 9.50am, an uncompleted wooden site office at the construction site situate at the junction of Tampines Avenue 6 and 9 collapsed. The plaintiff was a general worker at the construction site and at that time was working inside the structure when it collapsed and he was seriously injured. 3 The construction site belonged to the Housing and Development Board (‘HDB’). HDB awarded the contract for the construction of 656 dwelling units on the site to Shun Shing in May 1994, who in turn sub-contracted the whole of the works to Sources Construction Pte Ltd (‘Sources’), as evidenced by their letter to Sources dated 2 July 1994. Sources then sub-contracted the carpentry works for the site to Hood Seng Construction Engineering (‘Hood Seng’), and the latter in turn sub-contracted part of these works to Quick Start Construction (‘Quick Start’). This sub-contract was evidenced by a letter dated 29 June 1994 from Hood Seng to Quick Start – this letter, however, predated the letter evidencing the subcontract between Shun Shing and Sources. 4 The plaintiff commenced this action against HDB as the first defendant, Shun Shing as the second defendant and Quick Start as the third defendant, claiming against them damages for personal injury and for losses and expenses he had sustained. He founded his claim on negligence and a breach of duty as employers and/or occupiers of the site office and also on a breach of duty under the Factories Act (Cap 104) (‘the Factories Act’). 5 After the commencement of this action, Shun Shing started third party proceedings against the third party. The third party had, by a contract of insurance dated 30 August 1993, agreed to indemnify Shun Shing against all sums which Shun Shing were liable to pay to their workmen for any personal injury which they might suffer arising out of or in the course of their employment by Shun Shing. Initially, when the policy was issued, there was only one person covered by it, that person being Shum Hau Tak (‘Shum’), the quantity surveyor employed by Shun Shing. This insurance coverage was for accidents occurring anywhere in Singapore. Subsequently, by an endorsement, Endorsement No E5290/1 dated 13 January 1994, the policy was extended to cover ‘3 General Labourers (Sub- Contractors’ Workers)’. Shun Shing contended that this endorsement extended the policy to cover the plaintiff as an employee of a sub-contractor. 6 Before the trial started, the plaintiff had discontinued his claim against HDB, and had obtained an interlocutory judgment in default of appearance against Quick Start. Thus, when the action came on for trial, it was an action between the plaintiff and Shun Shing and between Shun Shing and the third party. The trial 7 The plaintiff was a Malaysian rice padi planter but came to Singapore to find work, as he could earn a higher salary here. In his evidence, he stated that a fellow Malaysian, whose name he did not know, brought him to the site. He was introduced to a man who, he was told, was ‘Mr Ban Ching’ and who was also the supervisor at the site. He discussed his salary with Ban Ching and was told to start work first, despite the fact that he did not have a valid work permit at that time. He also said that the fellow Malaysian told him that Ban Ching was employed by Shun Shing. He maintained that he was not introduced to anyone else, nor was he employed by any other firm or company. Three days after he had started work, he was injured when the site office in which he was working collapsed onto him. At that particular time, there were four other fellow workers who were also working in or at the site office. In an article carried in the Straits Times on the following day, it was reported that one of them was tragically killed and the rest were injured in the accident. 8 According to the plaintiff, on the first day when he started work (which was on 1 July 1994), Ban Ching told him to work in the site office. Ban Ching’s instructions were to ‘knock in some nails so site office would not shake’. He therefore worked there. On the day of the accident, although he realised that it was raining heavily, he nevertheless continued working there, as it was sheltered inside. Although the roof of the site office had not as yet been built, a ceiling made of plywood had been installed. Further, the plaintiff and his fellow workers had to continue working, as the site office was required urgently. As a result, he did not stop working and it was in the midst of this that the site office collapsed. 9 It was established at the trial that Shun Shing did not employ the plaintiff. First, there was the evidence of Shum. He testified that after the accident he started investigations into the accident and found that the plaintiff was not employed by Shun Shing. He could not confirm the existence of a person called ‘Ban Ching’. Secondly, a partner of Quick Start, Lim Png Sor (‘Lim’), gave evidence that he was the one who had interviewed and employed the plaintiff. He testified that he knew that the plaintiff did not have a work permit but informed the plaintiff that he would apply for one after a trial period of one week. It was in evidence that shortly after the accident, an officer of the Ministry of Labour started investigations and found that Lim was the one guilty of employing illegal workers. Lim subsequently paid a sum of $1,000 to compound the offence for employing the plaintiff to work for the period of three days without a work permit. Decision below 10 The trial judge dismissed the plaintiff’s claims against Shun Shing. He found that Quick Start and not Shun Shing were the employers of the plaintiff. He therefore held that the plaintiff’s claim against Shun Shing as an employer for damages for negligence and breach of duty to take reasonable care failed. He said in ¶ 12–13 of his grounds of judgment: 12 I find that at the time of the accident on 3 July 1994 the plaintiff was employed by Quick Start as a construction worker. He was employed two days previously and was instructed to work on the construction of the site office together with about four others. He was not employed by the first defendant or HDB. 13 The plaintiff alleged in para 7 of the statement of claim that the accident was caused by the negligence of the first defendant and/or by the breach of the first defendant’s duty as his employer to take reasonable care for his safety. All the particulars given had to do with the allegation that the first defendant was his employer. I have found that the first defendant was not his employer and accordingly the claim under para 7 fails. 11 Next, the learned judge found that Shun Shing were the occupiers of the construction site including that part where the site office was under construction, and that they had control thereof and did not relinquish it by sub-contracting their works to Sources. He held that the plaintiff was an invitee while he was working at the half completed site office. He accepted that the duty of an occupier to an invitee is to use reasonable care to prevent damage or injury to the invitee from any unusual danger which he knows or ought to know. He found that on that day, in the morning between 8.30 am and 10.30 am, heavy rain and strong winds swept across Singapore. There was evidence before him which showed that during that time there was a strong wind gust of 60–90 km/h due to a Sumatran squall/ thunderstorm and that the strongest wind at Changi Airport was recorded at 87 km/h at about 10.15 am and at Paya Lebar at 63 km/h at about 9.45am. The learned judge came to the conclusion that the structure collapsed at about 9.50am and that it collapsed under the combined force of the heavy rain and strong gusty wind. 12 Turning to the law, the learned judge held that, having regard to the circumstances of the case and the law on occupiers’ liability laid down in Industrial Commercial Bank Ltd v Tan Swa Eng & Ors 45 Having regard to all the evidence before me I find that it has not been proved that there was any danger of the structure collapsing before it actually collapsed. It has not been proved that any of the first defendants’ supervisors or officers knew or ought to have known of the danger if there was any. If there was any such danger and if they did know about it there was really nothing they could have done to prevent injury to the plaintiff. There would have been very little time to do anything. The plaintiff’s claim against the first defendant as occupier of the site under para 8 of the statement of claim accordingly fails. 13 Lastly, he rejected the plaintiff’s claim under the Factories Act. He came to the conclusion that the plaintiff’s action was not one which was intended to be covered by the Factories Act. He said in ¶ 47: 47 ‘Factory’ means ‘any premises in which … persons are employed in manual labour in any process for or incidental to … (a) the making of any article or of part of any article; (b) the altering … of any article; or (c) the adapting for sale of any article …’ ‘Article’ is not defined except that it includes solid or liquid or gas or any combination of these but clearly it does not include any building such as a site office which is affixed to and forms part of the land. There can be no doubt that the accident did not occur within a ‘factory’ within the meaning of the Factories Act and the claim under para 9 accordingly fails. 14 The learned judge then proceeded to consider Shun Shing’s claim against the third party. He held that, on a true construction of the insurance policy, the third party was liable to indemnify Shun Shing for any damages they (Shun Shing) had to compensate the plaintiff. In his view, the policy, by the endorsement dated 13 January 1994, titled ‘3 General Labourers (Sub-Contractors’ workers)’, insured Shun Shing against any injury suffered by the plaintiff, an employee of the subcontractors, Quick Start. This was so even though Quick Start was the fourth contractor down the chain of sub-contracts originating from Shun Shing. He rejected the third party’s defences. However, since the plaintiff’s claim was dismissed, it followed that the third party need not indemnify Shun Shing for any amount. Accordingly, he dismissed Shun Shing’s claim. On the question of costs, he held that Shun Shing were justified in commencing the third party proceedings. He therefore ordered that the third party pay the costs of the third party proceedings. He said in ¶ 66 of his grounds of judgment: 66 In summary the first defendants’ claim against the third party for an indemnity would have succeeded if the plaintiff had succeeded in his claim against the first defendants. On the other hand the third party was not obliged to take over the defence as alleged but was only entitled to do so if it so desired. In the circumstances I order that in the main action the plaintiff pay the first defendants the costs of the action and in the third party proceedings the third party pay the first defendants the costs of the third party proceedings. Civil Appeal No 115 of 1996 15 We turn first to the plaintiff’s appeal, namely, CA 115/96. Three issues were raised. The first relates to the finding by the learned judge that Shun Shing were not liable to the plaintiff as employers. The second concerns Shun Shing’s liability as occupiers of the construction site office where the accident occurred. And the third is whether the Factories Act applies and, if it does, whether Shun Shing had committed a breach of any provisions thereof. Employer’s liability 16 On the first issue, counsel for the plaintiff contended that although the plaintiff was not employed by Shun Shing, nevertheless the latter owed him the same duty of care as if they were the employers of the plaintiff. It was submitted that the plaintiff could have more than one master (ie employer), and that at the time of the accident Shun Shing were his ‘employers’ and were in breach of their duty as such employers and were therefore liable in damages to him. Counsel relied on the case of Lim Chin Yok Co Ltd v Malayan Insurance Co Inc 17 In that case, the defendants were awarded a contract for the construction of a sea wall by the Ministry of the Interior and Defence. They hired a piling frame from another contractor but the labour for the construction of the sea wall using the piling frame was supplied by one Pareed Kunju (‘Kunju’). Although the plaintiff was Kunju’s direct employee when an accident occurred which injured him, nevertheless Choor Singh J held that the defendants were then the temporary employer of the plaintiff and were therefore liable. Choor Singh J held, at p 103 para C to F: It is true that Pareed Kunju was an independent contractor but his contract was merely for supplying labour for the piling operation which remained under the control and direction of the defendants. The defendants were in the position of being able to tell Kunju’s labourers, what to do, where to do it and how to do it. There was transfer of control from Pareed Kunju to the defendants who were under the circumstances, while the piling operation was in progress, the temporary employers of the plaintiff. Once the right of control is transferred, the temporary master takes over all the ordinary liabilities of an employer and owes the employer’s ordinary duty of care to the temporary servant. … In my opinion, on the facts of this case the plaintiff was clearly working for the defendants in operating their piling frame when he was injured and they were liable to him, as his employers, for their negligence in providing him with a piling frame which had an unsafe pulley which broke and injured him. 18 Drawing a parallel from that case, counsel for the plaintiff argued that Shun Shing were the ‘employers’ of the plaintiff at the time the latter was injured and were therefore liable to him, notwithstanding that they did not employ him. In particular, attention was drawn to the learned judge’s finding that Shun Shing were required to supervise not only the site in general but also the construction of the site office. In ¶ 28 of his grounds of judgment, the learned judge said: 28 The first defendants’ letter to HDB said that its professional engineer Koh had endorsed the design calculations and I can infer that it employed Koh for that purpose. Koh was required to supervise the construction of the site office and to submit a certificate of supervision upon completion. There was no evidence as to whether Koh continued to be retained for this purpose but there was also no evidence that there was any change in HDB’s conditions. There was also no evidence that the responsibility for providing supervision by a professional engineer had been included in the sub-contract to Sources. Counsel then referred to the evidence of Shum, where he said that Shun Shing had their supervisor at the site. In particular, he mentioned that one Steven Lee was the project manager who supervised or should have supervised the project from the commencement of the work. 19 We think that to succeed on this issue the plaintiff has to go further. He has to establish Shun Shing at the material time exercised control or had the right to exercise control over him in relation to the work he was engaged to do. It has long been recognised, especially in cases dealing with employer’s vicarious liability for damage caused by his employee to a third party, that an ‘employer’ in such a case means not only the party who actually employs the employee, but also the one who at the material time exercises or has the right to exercise control over the employee in respect of the work he was engaged to perform, notwithstanding that there is no contract of employment between him and the party who exercises or has the right to exercise control. In the celebrated case of Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd Many factors have a bearing on the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. If someone other than his general employer is authorised to do this he will, as a rule, be the person liable for the employee’s negligence. But it is not enough that the task to be performed should be under his control, he must also control the method of performing it. It is true that in most cases no orders as to how a job should be done are given or required: the man is left to do his own work in his own way. But the ultimate question is not what specific orders, or whether any specific orders, were given but who is entitled to give the orders as to how the work should be done. [Emphasis is ours.] 20 Similarly, in a case, such as the present one, where the workman is not employed by the main contractor but by a sub-contractor, the main contractor may be liable as the ‘employer’ of the workman, if he exercises or has the right to exercise control over the workman in respect of the work upon which he was engaged to perform. The concept of ‘employer’ as adopted in vicarious liability cases equally applies in a case such as the present one. 21 In this respect, Gibb v United Steel Companies Ltd & Anor [1957] 2 All ER 110 is instructive. There, the plaintiff was a dock labourer and was seriously injured in the course of his employment by being crushed between the buffers of two railway wagons by reason of the fact that one of the wagons had not been braked. He brought an action for damages against two defendants; the first defendants were the master stevedore at the docks, and the second defendants were the harbour board. At the material time, the plaintiff was employed by the harbour board, who were the legal owners and occupiers of the docks, railways, locomotives, cranes and other equipment. The master stevedore handled cargoes which were consigned to them and to other consignees. They paid the harbour board the wages of all the dock labourers employed for handling the cargoes and in turn obtained reimbursements from the appropriate consignees. The question before the court was which of the defendants at the material time were the plaintiff’s employers and were therefore liable to him in damages. 22 Streatfeild J who tried the case held, first, that the plaintiff’s employers — without identifying which of the defendants were the plaintiff’s employers — were negligent in failing to lay down and maintain a reasonably safe system of work in the circumstances. He next considered the question as to which of the defendants were at the material time the plaintiff’s employers. He held that although the plaintiff was legally employed by the harbour board and was working in their premises at the time of the accident, he was pro hâc vice the servant of the first defendants, who not only had the right to direct him what to do but also had full power to direct the method in which he carried out his work, and therefore the first defendants were liable to the plaintiff in damages. The learned judge said, at pp 113–114: The harbour board contended that, although the plaintiff was in law their general servant, his services at the material time had been transferred, pro hâc vice, to the first defendants. I agree with counsel for the harbour board that it is a pure question of fact to be determined on the whole of the evidence, and is not resolved simply by determining who engaged the plaintiff, and who paid his wages, and had the right to dismiss him. The proper test is: Who has the right at the moment to control the manner of the execution of the acts of the servant? See Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1946] 2 All ER 345. That was a case concerning a crane-driver hired, with his crane, by a harbour board to stevedores, and it was held that, notwithstanding an express agreement to the contrary between the parties, the cranedriver remained the general servant of the harbour board, because the hirers had no right to control the method of execution of his work, although they could direct him what work he was to do. The onus on the general employers, to prove that the services of their general servant were transferred to another, is a heavy one; but there may, on the facts, be a great difference between the services of a technical craftsman, and those of a labourer; see the observations of Lord Uthwatt [1946] 2 All ER at p. 354. Reference is also made to O’Reilly v Imperial Chemical Industries Ltd [1955] 3 All ER 382. 23 Gibb was cited and followed in Lim Chin Yok Co Ltd. Both these cases rested on the premise that the control or the right to exercise control over the labourer concerned had been transferred to the party who pro hac vice was his employer. 24 The decisive factor here was the control exercised or the right to exercise control over the plaintiff in respect of the work he was engaged to do. If Shun Shing had the control or the right to exercise control over the plaintiff, they would, on the principle we have discussed, owe a duty of care to the plaintiff as his employers, notwithstanding that they did not actually employ him. 25 We now turn to the facts. The plaintiff was injured while he was engaged in the construction of the site office. Presumably the site office was to enable Shun Shing and their sub-contractors and sub-sub-contractors to carry out the building works under the main contract with HDB. It was not part of such building works. The building of the site office was sub-contracted to Quick Start by Hood Seng as part of the carpentry works. The building plans for the site office was submitted by Shun Shing to HDB for approval, because they were the main contractors. As required by HDB, their engineer was required to supervise the construction of the site office. However, there was no evidence that Shun Shing had been or were involved or participated in the actual construction in any way. Nor was there any evidence that their engineer or site supervisor did supervise the construction, while it was in progress. Indeed, there was no evidence that any officer or employee of Shun Shing was at the site at the material time and exercised any control or supervision over the construction of the site office. 26 To the extent that anyone had any control over the plaintiff, the evidence adduced showed that Lim of Quick Start was the one in control. He it was who told the plaintiff what to do and how to do the work. He testified that he employed the plaintiff, and he was the one who provided seven workers to work at the construction site. While he stated that a site foreman had to supervise the plaintiff and his co-workers, he could not remember who this site foreman was. He was supposed to pay the salary of the plaintiff, but when the plaintiff was injured, the latter’s medical expenses were paid by Hood Seng on his behalf. On the evidence before us, it has not been established that Shun Shing as the main contractor had any control or the right to exercise any control over the plaintiff such that they assumed a common law duty as his employers. The plaintiff’s appeal on this issue therefore fails. 27 Both Gibb and Lim Chin Yok are distinguishable from the present case in one material respect. In Gibb, it was found that the master stevedore had the right to direct the labourer concerned what to do and also the power to direct the method in which he was to carry out the work. In Lim Chin Yok Co Ltd, only labourers were provided by the sub-contractor to the defendants and the defendants themselves had to carry out the actual works. The defendants told them what to do, where to do and how to do the work. In the present case, Quick Start were awarded the sub-contract for the carpentry works for the site, and they had to supply not only their own labour but also expertise for those carpentry works. Occupier’s liability 28 We now turn to the second issue, namely, whether Shun Shing were liable to the plaintiff as occupiers of the construction site. The learned judge found that Shun Shing, being the main contractors under their contract with HDB and having an interest in the construction of the dwelling units on the site, were occupiers of the site which included the site office. The learned judge adopted the following passage of the judgment of Lord Denning in Wheat v E Lacon and Co Ltd … wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an ‘occupier’ and the person coming lawfully there is his ‘visitor’: and the ‘occupier’ is under a duty to his ‘visitor’ to use reasonable care. In order to be an ‘occupier’ it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be ‘occupiers’. The learned judge then said in ¶ 30 and 31 of his grounds of judgment as follows: 30 The first defendant was awarded the contract for the construction of 656 dwelling units. The contract is not before me but the first defendant must have been given possession of the site. The contract works included the construction of the site office. The whole of the works were sub-contracted to Sources and Sources was to observe, perform and comply with all the provisions of the contract between the first defendant and HDB and to indemnify the first defendant. The contract with HDB was not assigned. The first defendant remained primarily answerable to HDB by which it would be paid for the works. It had its supervisors on site. No doubt they were there to provide supervision. 31 I think the first defendant had a sufficient degree of control over the whole of the site including that part where the site office was under construction. This is so notwithstanding that Sources, Hood Seng and Quick Start might also have had some degree of control over that part of the site. In my judgment the first defendant[s] was an occupier of the site including that part of it where the site office was on the day of the accident under construction. 29 We agree fully with the learned judge’s findings. We also agree that the plaintiff was an invitee at the site office, having been employed by an authorised party, namely Quick Start, to carry out the works there. The only question remaining is whether Shun Shing, as occupiers of the site, breached their duty of care to the plaintiff when the site office collapsed and injured him. 30 The law in respect of an occupier’s liability in Singapore, unlike that in England, is strictly derived from the common law. In Industrial Commercial Bank v Tan Swa Eng & Ors The law on occupiers’ liability in Singapore is derived from English common law. However, legislation in England has been passed which has made significant changes to the common law. In Singapore, there is no such parallel legislation, and the English statutes on occupier’s liability are not applicable. He then continued at para D: The duty owed by an occupier to an invitee is stated by Willes J in Indermaur v Dames (1866) LR 1 CP 274 in the following terms: ‘And with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact … ’ In short, the duty of an occupier to an invitee would be to prevent damage or injury from any unusual dangers on the premises he knows or ought to know and which the invitee does not know about. 31 Reverting to the instant case, the learned judge found that the site office collapsed as a result of the combined force of gusty wind and heavy rain which swept through Singapore on the morning of the accident. He said in 23 of his grounds of judgment: 23 It was raining heavily at the time the structure collapsed and I think for some time before that although it was unlikely to have been heavy before 8.30am. The winds could have started to build up from about 9.45am but as the plaintiff gave no evidence of the wind conditions the likelihood is that he did not notice anything unusual. There was no evidence of any defect in the design of the site office or the method of construction or materials used or anything to do with the structure that caused it to collapse. The structure collapsed at about 9.50am and on the evidence before me I find that it collapsed under the combined force of the heavy rain and strong gusty wind. He later said in ¶ 36–39: 36 I return now to the facts in the case before me. Between 8.30am and 10.30am there was intermittent to continuous rain which was occasionally heavy according to the weather assessment. At 9.50am the structure collapsed. I have found that it collapsed because of the heavy rain and the strong gusty wind. It was likely that these wind conditions started between 9.45am and 10.00am. 37 The uncompleted site office would have been able to withstand heavy rain. It did. It would also have been able to withstand some amount of wind. The first question then is what conditions of rain and wind would present a danger of this structure collapsing. Unfortunately there was no evidence of what these conditions would be. 38 The structure collapsed under conditions which were uncommon. Usually wind fluctuated in speed and direction quite quickly and a sudden strong gust of wind could have caused the structure to collapse without any build up. If there was a build up starting from about 9.45am the structure would have collapsed within about five minutes. There was no evidence as to the wind conditions at any time at all before the structure collapsed or at any time at all that day although the plaintiff and four other workers were there and many other workers must have been at the construction site. 39 Mr Shah said that the professional engineer Koh was not called. That was so but the evidence is that his design calculations were submitted and a copy of his submission is in the agreed bundle of documents. There was no evidence that there was anything wanting in regard to the design. 32 Having made these findings the learned judge then held that on the evidence the plaintiff had not proved that there was any unusual danger in the structure collapsing which Shun Shing or their supervisors or officers knew or ought to have known and came to the conclusion that the plaintiff had failed on this claim. He said in ¶ 45 of his grounds of judgment: Having regard to all the evidence before me I find that it has not been proved that there was any danger of the structure collapsing before it actually collapsed. It has not been proved that any of the first defendant’s supervisors or officers knew or ought to have known of the danger if there was any. If there was any such danger and if they did know of it there was really nothing they could have done to prevent injury to the plaintiff. There would have been very little time to do anything. The plaintiff’s claim against the first defendant as occupier of the site under para 8 of the statement of claim accordingly fails. 33 In our opinion, the learned judge, with respect, has misdirected himself on the burden of proof. In this case, the uncompleted site office in which the plaintiff was working collapsed. The collapse was not caused or contributed to by him. Admittedly, at that time there were strong wind and heavy rain. Even then, as the learned judge held, such building ordinarily would and should be able to withstand strong wind and heavy rain in Singapore. In the ordinary course of things, the collapse of the site office would not have occurred. Thus, in these circumstances the collapse of the site office itself raised a strong inference that reasonable care had not been exercised in the construction thereof and there was negligence in either the design or the actual construction thereof. The occurrence of such an event spoke for itself. The event, which in the ordinary course of things is more likely than not to have been caused by negligence, is by itself evidence of negligence, and the rule of evidence, res ipsa loquitur applies. A prima facie case of negligence had been established against Shun Shing: see Teng Ah Kow & Anor v Ho Sek Chiu & Ors 34 In our judgment, in this case the evidential burden has shifted to Shun Shing to show that they had taken reasonable care in the construction of the site office and that the collapse thereof was not due to any fault on their part. They had control of the construction site including the site office, notwithstanding that the entire works in the construction site had been sub-contracted out to Sources. They could and should have called their professional engineer and on-site supervisor to testify that the site office was properly designed and constructed and was reasonably safe for any worker who might be working in it. Neither their professional engineer, who had designed the site office, nor their on-site supervisor who was supposed to have supervised the construction was called to testify. No explanation was given as to why they took this course of action. There was no testimony as to the state and condition of the site office at any stage before it collapsed. The mere fact that at the material time there were gusty wind and heavy rain was not enough. Shun Shing must adduce evidence to show, at least, that the site office had been properly designed; that that part of the site office which had been constructed had been properly constructed in accordance with the engineer’s design; that the construction had been adequately supervised by the site supervisor; and that the collapse was occasioned solely by the exceptionally strong gusty wind and heavy rain which the structure, notwithstanding the care taken in the design and construction, could not withstand. Not a scintilla of evidence was adduced to establish any of these matters. The burden rested on Shun Shing and they have not discharged it. Accordingly, we find that Shun Shing were negligent and were liable to the plaintiff as occupiers of the site. On this issue, the appeal of the plaintiff succeeds. Liability under the Factories Act 35 We come to the third issue in the plaintiff’s appeal, ie whether the Factories Act is applicable, and if so, whether any provisions thereof had been breached by Shun Shing. 36 Section 6(1) of the Factories Act gives a broad and general definition of ‘factory’, and s 6(2) goes further and defines specifically instances of a ‘factory’. The definitions of a ‘factory’ in sub-ss (1) and (2) are not mutually exclusive. A ‘factory’ can either fall within sub-ss (1) or (2) or both. This is confirmed by the opening phrase of s 6(2), which states: Whether or not premises are factories by reason of the foregoing definition, ‘factory’ also includes … [Emphasis is ours.] 37 Reverting to the instant case, the question is whether, on a true construction of s 6 as a whole, the construction site, in which the site office was being erected, was a ‘factory’. It clearly was not a ‘factory’ falling within s 6(1), as the learned judge held, and we agree. But, that is not the end of the matter. There is still s 6(2) to be considered, and, with respect, the learned judge did not consider it. Section 6(2)(q) provides: (2) Whether or not premises are factories by reason of the foregoing definition, ‘factory’ also includes the following premises in which persons are employed in manual labour: … (q) any premises in which building operations or works of engineering construction are being carried on. The word ‘building’ is defined in s 7 as follows: ‘building’ includes the whole or any part of any house or other structure, whether used for the purpose of human habitation or otherwise, and any structure, support or foundation connected to the foregoing. And the term ‘building operation’ is defined in the same section as follows: ‘building operation’ means the construction, structural alteration, repair or maintenance of a building (including the re-wiring of any electrical installation, the replacement of any lift, air-conditioning plant and ancillary ducting of a building, and the repointing, redecoration and external cleaning of the structure), the demolition of a building, and the preparation for, and the laying of foundation of, an intended building, but does not include any operation which is a work of engineering construction within the meaning of this Act. The same section then goes on to define ‘work of engineering construction’: ‘work of engineering construction’ means the construction of any railway line or siding, and the construction, structural alteration or repair (including repointing and repainting) or the demolition of any dock, harbour, inland navigation, tunnel, bridge, viaduct, waterworks, reservoir, pipe-line, aqueduct, sewer, sewerage works or gas-holder, and shall include such other works as may be specified by the Minister by order published in the Gazette. 38 On the basis of these provisions, the construction site, in our opinion, although not literally a ‘factory’, comes within the definition of a ‘factory’ under the Factories Act, and the provisions of that Act applies to the present case. 39 As we have held, Shun Shing were occupiers of the construction site which is a ‘factory’, and the question is whether Shun Shing had committed a breach of any provisions of the Factories Act. The plaintiff claimed that Shun Shing had breached their duties under ss 28(1) and 33 of the Factories Act. Section 28(1) provides: No person shall be employed at any machine or in any process, being a machine or process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed, and — (a) has received a sufficient training in work at the machine or in the process; or (b) is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process. This provision has absolutely no relevance here. At the time of the collapse of the site office, the plaintiff was not employed ‘at any machine or process’ within the meaning of that section. Section 28 has no application whatsoever. 41 We now turn to s 33 and only sub-ss (1) and (3) are relevant. They read as follows: (1) All places of work, floors, steps, stairs, passages, gangways and means of access shall — (a) be of sound construction and properly maintained; … (3) There shall, so far as is reasonably practicable, be provided and maintained safe means of access to and egress from every place at which any person has at any time to work and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there. 41 These two subsections were derived directly from the United Kingdom Factories Act of 1961 (‘the UK Act’), which consolidated the previous Factories Acts of 1937 and 1959. Subsections (1) and (3) of s 33 of our Act are substantially identical with s 28(1) and s 29(1) of the UK Act respectively. The only difference is that in s 33(1) of our Act we have an added instance of ‘places of work’ covered by the subsection. This phrase is absent in s 28(1) of the UK Act. 42 Subsections (1) and (3) are only applicable to the extent that the area or place in question is within the premises as defined under the Act. In Soon Pook Seng Arthur v Oceaneering International Sdn Bhd 43 Under s 33(1) of the Act Shun Shing were under a duty to ensure that the place of work was ‘of sound construction and properly maintained’. The words ‘sound construction’, in our opinion, refer to the time when the structure was constructed, and under this limb of s 33(1) Shun Shing was obliged to ensure that it was so constructed as to withstand any stresses to which it would ordinarily be subject. As for the second limb, ‘properly maintained’ the word ‘maintained’ is defined in s 7, which is this: ‘maintained’ means maintained in an efficient state, in efficient working order and in good repair. Hence, Shun Shing had a duty to maintain the structure in an efficient state, in efficient working order and in good repair. Shun Shing’s obligation under this provision is absolute and continuing and is not discharged by them showing that they had taken all reasonable care to comply with the provision: see Cole v Blackstone and Co, Ltd 44 In Cole v Blackstone and Co, Ltd, an employee of the defendant was fatally injured by a rung of the ladder giving way while he was ascending the ladder. His widow claimed damages for breach of duty under s 25(4) of the Factories Act 1937 which provided that ‘all ladders shall be soundly constructed and properly maintained’. Macnaghten J held that the duty under that section is absolute. He said, at p 617: The duty to keep all ladders in an efficient state and in good repair appears to me to be as absolute as the duty imposed by the Act to fence all dangerous parts of machinery. It is true that the defendants took great care for the safety of their men, and that this particular failure was one which, apparently, nobody could have anticipated. The fact that none of the other screws in the ladder were affected with corrosion indicates that there must have been something exceptional about this particular rung to bring about the deplorable result that it gave way. … However that may be, the ladder was not in fact in an efficient state or in good repair on the morning of the accident. 45 This passage of his judgment was quoted with approval by the House of Lords in Galashiels Gas Co, Ltd v O’Donnell or Millar (supra). There, an employee fell into the bottom of the lift shaft owing to a faulty mechanism in the operation of the lift. A claim was brought for breach of s 22(1) of the Factories Act 1937 which provided: Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained. It was held by the House of Lords that under s 22(1) an absolute and continuing obligation is imposed. Lord Morton of Henryton in his speech affirming the decision below said, at pp 282–283: My Lords, in my view the Lord Ordinary supplied the correct answer to the whole of this argument when he said: ‘In my opinion … there is imposed on the defenders an absolute and continuing obligation binding upon them which is not discharged if at any time their lift mechanism, in this case the brake, is not maintained in an efficient state, in efficient working order, and in good repair’. The words of the subsection are imperative ‘shall be properly maintained’ and I can find nothing in the context or in the general intention of the Act, read as a whole, which should lead your Lordships to infer any qualification upon that absolute obligation. Lord Reid said, at p 288: … it is clear, as the appellants’ counsel properly admitted, that the employer’s duty under the section goes beyond a duty to take care. It was admitted that the employer is liable in damages where the defect could not have been discovered before the accident by any examination which any reasonable man would have undertaken and even where the defect was a latent defect which could not have been discovered by examination before the accident of the defective part of the mechanism. In such cases it would [not] have been physically possible to prevent the accident. 46 We now turn to s 33(3) of the Act. Unlike s 33(1), the obligation under this sub-section is qualified by the words ‘so far as is reasonably practicable’ and is therefore not an absolute one. Hence, the obligation of Shun Shing under this subsection was to make and keep the place of work safe so far as was reasonably practicable. It has been decided by the House of Lords in Nimmo v Alexander Cowan and Sons Ltd I therefore return to the construction of s 29(1). Powerful reasons have been given by the Lord Ordinary and the judges of the First Division in favour of the respondents’ construction. It is said that the words ‘so far as is reasonably practicable’ are an integral part of the offence, that they qualify the verbs ‘made safe’ and ‘kept safe’ or are, as Lord Migdale graphically puts it, ‘woven into the verb’. But these considerations seem to me to pay little or no regard to the purpose of the section. The object of the section was to provide for a safe working place by imposing criminal and civil liability on the occupier in the event of breach. There is doubt as to the construction of this section. The question appears to me to depend upon which construction will best achieve the result to be attained, namely, to make and keep the working place safe. … To treat the onus as being on the pursuer seems to equiperate the duty under the statute to the duty under common law, namely, to take such steps as are reasonably practicable to keep the working place safe. I cannot think that the section was intended to place such a limited obligation on employers. In the same case, Lord Upjohn said, at pp 125–126: My Lords, it is not in doubt that the whole object of the Factories Act is to reinforce the common law obligation of the employer to take care for the safety of his workmen. … I cannot believe that Parliament intended to impose upon the injured workman or, if dead, his widow or other personal representative, the obligation to aver with the necessary particularity the manner in which the employer should have employed reasonably practicable means to make and keep the place safe for him. … it is the duty of the employer to make the place safe so far as is reasonably practicable. It is his duty with his experts to consider the state of the place of work in all its circumstances and to take whatever steps he can, so far as reasonably practicable, to make it safe. He must know and be able to give the reasons why he considered it was impracticable for him to make the place safe. If he cannot explain that, it can only be because he failed to give it proper consideration, in breach of his bounden duty to the safety of his workmen … … In my opinion, Parliament intended to impose upon the occupier the obligation of averring and proving at the trial that it was not reasonably practicable to make and keep the place of work safe, so that the pursuer’s averments cannot be dismissed as irrelevant. 47 We respectfully agree with the observations made by Lord Guest and Lord Upjohn respectively. Having regard to the object and purpose of the Factories Act, the burden is on the occupier of the premises to show that he has taken all reasonable steps to make and keep the place of work safe for anyone working there. Only the occupier has the requisite knowledge and expertise in respect of such matters, and is in a position to ensure compliance with the Act. 48 In our judgment, Shun Shing had breached the statutory duties imposed upon them under sub-ss (1) and (3) of s 33 of the Factories Act. Shun Shing had not shown that they had taken any steps to ensure that the site office was of sound construction and was properly maintained, i e that it was maintained in an efficient state, in efficient working order and in good repair. Nor had they shown that they had taken steps, so far as was reasonably practicable, to ensure that the site office was made and kept safe for any person working therein. The fact that the site office collapsed in the circumstances in which it would ordinarily have withstood is clear evidence that Shun Shing had breached their statutory duties. 49 In Lim Chin Yok, Choor Singh J held that the site where the piling works were being carried out was a ‘factory’ within the meaning of s 6(2) of the Factories Act (Cap 123, 1970 Ed) and that the defendants had breached their duty under s 31(1) of the Act. He said, at p 103 para I: A statutory duty is absolute in the sense that whatever the statute prescribes must be strictly performed. If the Act, according to its true construction, has not been complied with, liability is automatic. In this case the defendants had failed to perform their duty and this breach of duty resulted in harm to the plaintiff. He was therefore entitled to succeed in his claim for damages against the defendants. 50 Similarly, in the case before us, Shun Shing had failed to perform their duties and their breach had caused injuries and damage to the plaintiff, for which they are liable. Accordingly, on this ground the plaintiff also succeeds. Civil Appeal Nos 126 and 145 of 1996 51 These two appeals concern only Shun Shing and the third party and turn on the construction of the policy of insurance taken out by Shun Shing with the third party. Under the policy taken out on 24 August 1993 the third party agreed as follows: … that if any workman in the insured’s [Shun Shing’s] employment shall sustain personal injury by accident or disease caused during the period of insurance [24 August 1993 to 23 August 1994] and arising out of and in the course of his employment by the insured in the business, the Corporation [the third party] will subject to the terms exceptions conditions and warranties, and any memorandum if applicable, contained herein or endorsed hereon (all of which are hereinafter collectively referred to as the terms of this policy) indemnify the insured against all sums for which the insured shall be liable to pay compensation either under the legislation or at common law, and will in addition pay all costs and expenses incurred by the insured with the written consent of the Corporation. 52 Initially, when the policy was taken out only one person was covered by the policy and that person was Shum. The insurance coverage was for accident occurring anywhere in Singapore. Subsequently by an endorsement, Endorsement No E5290/1 dated 13 January 1994, the policy was extended to cover: ‘3 General Labourers (Sub-Contractors’ Workers)’. There was no indication as to who these three general labourers were meant to be. Nor was there any evidence on the surrounding circumstances in which the endorsement was requested for by Shun Shing and agreed to by the third party. There was absolutely no evidence as to the factual matrix in which the parties were when the endorsement was made. 53 The issue is whether the policy covered the plaintiff who was not employed by Shun Shing or their sub-contractor, Sources, but by Quick Start who were the sub-sub-contractors of Sources. The learned judge in dealing with this issue said in ¶ 58 of his grounds of judgment: The question is whether ‘Sub-Contractors’ Workers’ included the plaintiff or whether the expression meant only employees of the first defendant’s [Shun Shing’s] immediate sub-contractor Sources. It is not disputed that in appropriate cases ‘sub-contractor’ for this purpose can include ‘sub-sub-contractor’ and further down the line. He then held that it was intended by the endorsement that the policy would extend to employees of persons who had contracted to execute any part of the work undertaken by Shun Shing. He said in ¶ 62: I think what the parties intended was that the endorsement should extend the policy to employees of persons who have contracted to execute any part of the work undertaken by the first defendant. It was intended to provide insurance in cases where the first defendant would be liable to pay compensation under the Act notwithstanding that it may also be entitled to be indemnified by the workman’s immediate employer and also at common law. The third party’s defence under para 7A accordingly fails. 54 The learned judge’s reasoning for coming to this conclusion was based partly on the evidence of Shum and partly on the provisions of s 17(1) of the Workmen’s Compensation Act (Cap 354). Shum in his evidence said that the extension in the endorsement was meant to cover three general labourers employed by any subcontractor, whether or not the sub-contractor was a sub-contractor of Shun Shing; in other words the endorsement would cover workers of the sub-sub-contractors of Shun Shing. However, he admitted that he could not remember if this was made known to the third party. The learned judge referred, in particular, to the following evidence of Shum: In the case of a building project (such as the Tampines Project where the plaintiff was injured), where numerous different contractors and sub-contractors may be engaged, it is usual and convenient that the main contractor (such as the first defendants) take out a single policy covering all contractors and sub-contractors in respect of loss of or damage to the entire contract works or from personal injury claims arising therefrom. This makes sense as is evident from the instant case where the plaintiff was not insured by his employer, the third defendants [Quick Start]. 55 With great respect, we do not see how the evidence of Shum could assist in the construction of the policy. His evidence, putting at its highest, was quite equivocal, and whatever might be the intention of Shun Shing in securing the endorsement, there was nothing in Shum’s evidence which showed that it was intended and agreed to by the third party and Shun Shing that the endorsement would cover employees of the sub-contractors and sub-sub-contractors of Shun Shing. Assuming that it was usual and convenient for the main contractor to take out a single policy covering all contractors including sub-contractors and sub-subcontractors, it seems to us extremely odd that, in such a major contract as this, only three ‘General Labourers (Sub-Contractors’ workers)’ were covered by the policy. 56 Turning to s 17(1) of the Workmen’s Compensation Act we find it is of no assistance. That section, so far as relevant, provides as follows: Where any person (referred to in this section as the principal) in the course of or for the purpose of his trade or business contracts with any other person (referred to in this section as the contractor) for the execution by the contractor of the whole or any part of any work … undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him … 57 This section applies only when the ‘principal’ contracts with a ‘contractor’ by whom the workman was employed. There must be a contractual relationship between the principal and the contractor before s 17(1) operates. Once this contractual relationship is satisfied, the workman, by virtue of his right given under the Act, would be entitled to pursue his claim directly against the principal instead of his employer, the contractor. This section enables the workman to bypass the privity of contract between the principal and contractor. However, in our present case, the factual situation is completely different, and is far more extensive than that contemplated by s 17(1). The principal (ie Shun Shing) did not have any contractual relationship with Quick Start (ie the employers of the plaintiff), but only with Sources. Further down the line, there was no contractual relationship between Sources and Quick Start. If the plaintiff were to rely on s 17(1) he could only claim against Hood Seng, with whom his employer Quick Start had a contract. While the learned judge was right in saying that a principal’s liability under s 17(1) attaches by reason that the workman is employed in the execution of the work undertaken by the principal and for which the principal receives the benefit, it only applies if the principal has a contractual relationship with the workman’s employer, ie the contractor. 58 It is purely a matter of construction whether the term ‘sub-contractors’ include sub-sub-contractors of Shun Shing down the chain of sub-contracts. There is nothing in the context of the policy which indicates that such a broad construction should be adopted. The words ‘sub-contractors’ workers’ are clear and there is no reason why effect should not be given to them. In the context of this policy, the definition of ‘sub-contractors’ workers’ cannot be read and construed to cover workers of sub-sub-contractors down the chain of subcontracts. In the course of the arguments before us some reliance was placed on the word ‘sub-contractors’ in the plural sense as indicating that it was meant to cover sub-sub-contractors as well. We think not. Such a construction would be stretching the meaning of the term ‘sub-contractors’. It seems to us that the reason for having the sub-contractors in plural was that it was probably intended to cover a situation where Shun Shing sub-contracted parts of their works to more than one sub-contractor and three workers of these sub-contractors would be covered by the policy. It would be a misreading of the term ‘sub-contractors’ to extend it to cover also sub-sub-contractors of Shun Shing and so on right down the chain of subcontracts. 59 Even if it were held that the term ‘sub-contractors’ in the endorsement extends to sub-sub-contractors of Shun Shing, Shun Shing’s claim for indemnity under the policy would still fail. As we have held, the plaintiff’s claim against Shun Shing for damages for personal injuries as an employer of the plaintiff fails. The plaintiff was not contractually an employee of Shun Shing, nor was he held to be such an employee by reason of any control or right of control exercised over him by Shun Shing. The plaintiff’s claim against Shun Shing succeeds on the basis of their liability as the occupier of the site office and under the Factories Act. That being the position, Shun Shing are not entitled to an indemnity from the third party under the policy. Conclusion 60 In conclusion, we allow the plaintiff’s appeal, ie CA 115/96 and set aside that part of the judgment below dismissing his claim. We allow the plaintiff’s claim in this action and there will be interlocutory judgment in his favour with damages to be assessed. The plaintiff is to have his costs here and below and the deposit as security for costs is to be refunded to him. 61 In CA 126 and 145/96, we dismiss Shun Shing’s appeal. We affirm the decision below dismissing Shun Shing’s claim against the third party for an indemnity and set aside that part of the order below allowing Shun Shing the costs of the third party proceedings. We order Shun Shing to pay to the third party the costs of the third party proceedings. We award to the third party the costs of the two appeals but only one set of costs is allowed. The deposit as security for costs in CA 126/96 is to be paid to the third party and that in CA 145/96 is to be refunded to the third party. Order accordingly. Reported by Tan Boon Khai